209
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Registration Rights Agreement"),
entered into as of March 10, 1997, between ___________________ with offices at
________________ (the "Purchaser"), and Palomar Medical Technologies, Inc., a
Delaware corporation, with offices at 00 Xxxxxx Xxxx Xxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Company").
W I T N E S S E T H:
WHEREAS, pursuant to a Subscription Agreement, dated as of March 10, 1997
(the "Agreement"), by and between the Company and the Purchaser, the Company has
agreed to sell and the Purchaser has agreed to purchase up to ___________
Dollars (U.S.$_______) of the Company's 5% Convertible Debentures due March 10,
2002 (the "Debentures") convertible into shares of the Company's Common Stock,
$.01 par value. The shares of Common Stock issuable upon conversion of the
Debentures are referred to herein as the "Shares".
WHEREAS, pursuant to the terms of, and in partial consideration for, the
Purchaser's agreement to enter into the Agreement, the Company has agreed to
provide the Purchaser with certain registration rights with respect to the
Shares;
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth herein, the Company and the
Purchaser agree as follows:
1. Certain Definitions. As used in this Registration Rights Agreement, the
following terms shall have the following respective meanings. Other terms used
herein which are defined in the Agreement shall have the same meanings herein as
are set forth for such terms in the Agreement or, if not defined therein, in the
Debentures.
"Commission" or "SEC" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"Minimum Number of Shares" shall mean, at any time, the sum of (i) the
number of shares of Common Stock issued prior to such time upon conversion
of all or any part of the Debentures, plus (ii) the number of shares (as
may be adjusted in accordance with the terms of the
000
Xxxxxxxxx) xx Xxxxxx Stock issuable at such time upon conversion of the
Debentures (without giving effect to any applicable conversion
restrictions), minus (iii) the number of shares of Common Stock described
in clause (i) above that have been sold prior to such time by the Holders
pursuant to a registration statement or Rule 144.
"Registrable Securities" shall mean: (i) Shares issued to the Purchaser or
its designee upon conversion of the Debentures; (ii) any securities into
which or for which any such Shares shall have been converted or exchanged
pursuant to any recapitalization, reorganization or merger; and (iii) any
securities issued with respect to the foregoing pursuant to a stock split
or stock dividend.
The terms "register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" shall mean all expenses to be incurred by the
Company in connection with the Purchaser's exercise of its registration
rights under this Registration Rights Agreement, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses, and
the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of the
Company, which shall be paid in any event by the Company).
"Selling Expenses" shall mean all underwriting discounts and selling
commissions, if any, applicable to the sale of such Holder's Registrable
Securities and all fees and disbursements of counsel for such Holder.
"Holder" shall include the Purchaser and any transferee of Debentures,
Shares or Registrable Securities which have not been sold to the public to
whom the registration rights conferred by this Registration Rights
Agreement have been transferred in compliance with Section 10 of this
Registration Rights Agreement.
"Registration Statement" shall have the meaning set forth in Section 2(a)
herein.
211
"Regulation D" shall mean Regulation D promulgated under the Securities
Act, as amended from time to time.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
2. Registration Requirements. The Company shall file by the sixtieth (60th)
calendar day after the Closing Date, and use its best efforts to cause to become
effective, as promptly as possible and in any event by the one hundred twentieth
(120th) calendar day after the Closing Date, a registration statement on Form
S-3 under the Securities Act or, if Form S-3 is not then available, on another
appropriate form covering the resale of the Registrable Securities, covering
1,100,000 shares and shall take all action necessary to qualify the Registrable
Securities under state "blue sky" laws as hereinafter provided. The Company
shall use its diligent best efforts to effect the registrations contemplated by
the foregoing (including, without limitation, the execution of an undertaking to
file amendments and post-effective amendments, appropriate qualification under
and compliance with applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act) and as would permit or facilitate the sale and distribution of all the
Registrable Securities in all states reasonably requested by the Holder for
purposes of maximizing the proceeds realizable by the Holder, except that the
Company shall not be required in connection therewith or as a condition thereof
to qualify as a foreign corporation in any jurisdiction in which it is not
otherwise required to be so qualified, except the State of New York (if required
in order to satisfy New York blue sky laws), from such sale and distribution.
Such best efforts by the Company shall include, without limitation, the
following:
(a) The Company shall file (i) registration statement(s) with the
Commission pursuant to Rule 415 under the Securities Act on Form S-3 under
the Securities Act and the Company shall use its best efforts to qualify
for the use of such Form (or in the event that the Company is ineligible to
use such form, such other form as the Company is eligible to use under the
Securities Act) covering all of the Registrable Securities so to be
registered (each, a "Registration Statement"); (ii) within fifteen business
days after the Company receives notice from any Holder that the number of
Registrable Securities covered by the Registration Statement is at any time
less than one hundred ten percent (110%) of the Minimum Number of Shares,
an amendment to the Registration Statement to increase by twenty percent
(20%) the number of Registrable Securities originally covered by the
Registration Statement; (iii) thereafter, as promptly as possible, and in
any event within thirty
212
calendar days after the Company receives notice from any Holder that the
number of Registrable Securities covered by the Registration Statement
shall at any time be insufficient to cover one hundred ten percent (110%)
of the Minimum Number of Shares, one or more additional registration
statements covering two hundred percent (200%) of the Minimum Number of
Shares; (iv) such blue sky filings as shall be reasonably requested to
permit such sales, provided, however, that the Company shall not be
required to register the Registrable Securities in any jurisdiction that
would subject it to general service of process in any such jurisdiction
where it is not then so subject or subject the Company to any tax in any
such jurisdiction where it is not then so subject or require the Company to
qualify to do business in any jurisdiction where it is not then so
qualified; and (v) required filings with the National Association of
Securities Dealers, Inc. ("NASD") or exchange where the Shares are traded;
all as soon as practicable after the date hereof. The Company shall use its
best efforts to have the Registration Statement, or such amendments and any
such additional registration statements and other filings declared
effective as soon as may be practicable after filing in accordance with
this paragraph.
(b) The Company shall enter into such customary agreements (including
a customary underwriting agreement with the underwriter or underwriters, if
any) and take all such other reasonable actions in connection therewith in
order to expedite or facilitate the disposition of such Registrable
Securities and in such connection, the Company shall:
(i) make such representations and warranties to the underwriter
or underwriters, if any, in form and substance and scope as are
customarily made by issuers to underwriters in secondary underwritten
offerings;
(ii) in the case of an underwritten offering, cause to be
delivered to the sellers of Registrable Securities and the underwriter
or underwriters, if any, opinions of counsel to the Company, dated the
effective date (or in the case of an underwritten offering, dated the
date of delivery of any Registrable Securities sold pursuant thereto)
of the applicable registration statement (which counsel, and opinions
(in form, scope and substance), shall be reasonably satisfactory to
the managing underwriter or underwriters, if any, and the appointed
representative or counsel of the Holder), addressed to the Holder and
each underwriter, if any, covering the matters customarily covered in
opinions requested in underwritten secondary offerings and, in the
case of any
213
underwritten offering, such other matters as may be reasonably
requested by the Holder;
(iii) in the case of an underwritten offering, cause to be
delivered, immediately prior to the effectiveness of the applicable
Registration Statement (and, in the case of an underwritten offering,
at the time of delivery of any Registrable Securities sold pursuant
thereto), letters from the Company's independent certified public
accountants addressed to the Holder and each underwriter, if any,
stating that such accountants are independent public accountants
within the meaning of the Securities Act and the applicable published
rules and regulations thereunder, and otherwise in customary form and
covering such financial and accounting matters as are customarily
covered by letters of the independent certified public accountants
delivered in connection with underwritten secondary public offerings;
(iv) if an underwriting agreement is entered into, cause the same
to set forth indemnification and contribution provisions and
procedures which are no less favorable to the Holder and the Company
than those contemplated by sections 9 and 10 with respect to all
parties to be indemnified pursuant to such sections;
(v) deliver such documents and certificates as may be reasonably
requested by the Holder of the Registrable Securities being sold or
the managing underwriter or underwriters, if any, to evidence
compliance with clause (i) above and with any customary conditions
contained in the underwriting agreement, if any, or other agreement
entered into by the Company;
the foregoing in this paragraph 2(b) shall be done at each closing under any
such underwriting or similar agreement or as and to the extent required
thereunder; provided, however, that the Company shall not be required to effect
an underwritten offering of the Registrable Securities on more than one (1)
occasion.
(c) At least ten (10) business days prior to the anticipated filing
thereof with the SEC, the Company shall make available for inspection and
review by the Holder, a representative or representatives of the Holder,
any underwriter participating in any disposition pursuant to a Registration
Statement, and any attorney or accountant retained by such Holder or
underwriter, any such registration statement or amendment or supplement or
any blue sky, NASD or other filing, all
214
financial and other records, pertinent corporate documents and properties
of the Company as they may reasonably request for the purpose, and cause
the Company's officers, directors and employees to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such Registration Statement; provided,
however, that the Holder and its representatives, if any, shall first agree
in writing with the Company that any information that is reasonably and in
good faith designated by the Company in writing as confidential at the time
of delivery of such information shall be kept confidential by the Holder
and its representatives, if any, and that the Holder and its
representatives, if any, will use reasonable efforts to cause its
representatives and such other persons so to keep such information
confidential, unless (i) disclosure of such information is required by
court or administrative order or is necessary to respond to inquiries of
regulatory authorities, (ii) disclosure of such information is required by
law (including any disclosure requirements pursuant to Federal securities
laws in connection with the filing of any Registration Statement or the use
of any prospectus referred to in this Agreement), (iii) such information
becomes generally available to the public other than as a result of a
disclosure or failure to safeguard by any such person, (iv) such
information becomes available to any such person from a source other than
the Company and such source, to the knowledge of such persons, is not bound
by a confidentiality agreement with the Company, or (v) such information
was known to or is developed by such persons without reference to such
confidential information of the Company. In the case of any disclosure in
clauses (i) and (ii) above, the Holder will use reasonable efforts to give
to the Company as much notice as possible prior to such disclosure.
In connection with any registration of securities of the Holder hereunder,
the Holder shall promptly complete and return to the Company all selling
stockholder questionnaires, and otherwise furnish to the Company all information
regarding the Holder, reasonably requested by the Company to assist the Company
in preparing any Registration Statement, any amendment or supplement thereto, or
any blue sky, NASD or other filing to be made in connection therewith.
(d) The Company will keep, to the maximum extent permitted by
applicable law, the economic terms of the Debentures and the offering
related thereto confidential. If the Company is required by applicable law
to file the form of Debenture, any written summary of the material economic
terms of the Debentures or any other documents related to the transactions
contemplated hereby with the Commission or any other governmental
authority, the Company shall, prior to any such
215
filing, (i) notify the Holders, (ii) seek to have the Commission afford
confidential treatment to the filing, (iii) permit the Holders the
opportunity to review the proposed filing and any requests for confidential
treatment, and (iv) accommodate all reasonable comments and requests for
changes made by the Holders or their counsel.
Notwithstanding the foregoing, the Holder hereby consents to the filing by
the Company of the form of Debenture, the Agreement and this Registration Rights
Agreement as exhibits to any registration statements filed under the Securities
Act and any Exchange Act Reports (as defined in the Agreement) filed after the
date of this Registration Rights Agreement.
3. Underwritten Distribution. If the Holder intends to distribute the
Registrable Securities covered by a Registration Statement by means of an
underwriting, the Holder shall so advise the Company and, within 30 days of the
date thereof and without limiting the generality of other provisions hereof, the
Company will prepare and file such amendment or amendments to the Registration
Statement and make such other filings as may be necessary or appropriate to
effect any such underwritten distribution.
4. Multiple Holders. If there is more than one Holder, such Holders shall
act with respect to their rights under this Registration Rights Agreement
according to the vote of two-thirds-in-interest.
5. Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Registration Rights Agreement shall be borne by the Company, and all Selling
Expenses shall be borne by each Holder.
6. Registration Delay or Failure. The Company acknowledges that its failure
to register the Registrable Securities in accordance with the Agreement and this
Registration Rights Agreement will cause the Holder to suffer damages and
undertake risks in amounts that will be difficult to ascertain and were not
anticipated in negotiating the terms hereof or of the Agreement or the
Debentures. Accordingly, the parties agree that it is appropriate to include
herein a provision for liquidated damages and to compensate the Holder fairly
for the additional risk undertaken by the Holder resulting from the Company's
delay or failure to effect such registrations. The parties acknowledge and agree
that the provisions hereinafter set forth in this Paragraph 6 represent the
parties' good faith effort to quantify such damages and to compensate for such
216
additional risk and, as such, agree that the form and amount of damages and risk
compensation are reasonable and will not constitute a penalty.
(a) If the Registration Statement covering the resale of the Shares is
not declared effective by the one hundred twentieth (120th) calendar day
after the Closing Date, then the Company shall pay, in cash, to the Holder
on such 120th day and on each succeeding 30th day thereafter (or earlier
date when the Registration Statement becomes effective) upon which such
Registration Statement still has not become effective, an amount equal to
two percent (2%) of the original principal amount of the Debentures of the
Holder on the payment date (or the date upon which the Registration
Statement becomes effective) until the earlier of (i) the Registration
Statement being declared effective or (ii) the two hundred seventieth
(270th) day after the Closing Date. The amounts payable pursuant to the
foregoing sentence shall not exceed ten percent (10%) of the Outstanding
Amount of the Debentures if, on or prior to the payment date for any 30-day
period that would require payments in excess of such amounts, the Company
has established to the reasonable satisfaction of the Holder that the
Company has adequate liquidity to redeem the Debentures pursuant to Section
6 thereof. In addition, in the event that any principal of the Debentures
is converted prior to the 120th day, the Company will pay, in cash, to the
Holder, in addition to the Shares issued upon conversion, two (2) percent
of the original principal amount of the Debenture on the applicable Holder
Conversion Date.
(b) If such Registration Statement still has not become effective by
the 270th calendar day after the Closing Date, then, at the Holder's option
exercised at any time thereafter until the effectiveness of the
Registration Statement (which shall not be subject to any stop orders or
other prohibitions on sale of shares thereunder), the Company shall redeem
the Holder's Debentures, at a price equal to one hundred twenty percent
(120%) of the original principal amount of the Holder's Debentures in
accordance with the procedures set forth in Section 6 (without regard to
Sections 6(d) or 6(e)) of the Debentures.
(c) If such Registration Statement is insufficient to cover the number
of Shares issuable upon conversion of the Debentures by any Holder, then,
at the Holder's option exercised at any time during which such Registration
Statement is insufficient to cover the number of Shares issuable upon
conversion of such Holder's Debentures, the Company shall redeem the number
of Shares not covered by the Registration Statement pursuant to Section 6
(without regard to Sections 6(d) or 6(e)) of the Debentures.
217
(d) Notwithstanding any of the foregoing, failure to cause the
Registration Statement to become effective shall not constitute an Event of
Default under Section 17 of the Debenture as long as (i) the Company
continues to use its best efforts to cause the Registration Statement to
become effective as required by Section 6(a) hereof, (ii) the Company makes
timely payments of the amounts required by Section 6(a) hereof, (iii) on or
prior to the 270th calendar day after the Closing Date and at all times
thereafter until the effectiveness of the Registration Statement or the
redemption of all the Debentures, the Company shall have established to the
reasonable satisfaction of the Holder that the Company has adequate
liquidity to redeem the Debentures pursuant to Section 6 thereof, and (iv)
the Registration Statement shall have been filed by the 60th day after the
Closing Date.
7. Registration Procedures. In the case of each registration effected by
the Company pursuant to this Registration Rights Agreement, the Company will
keep the Holder advised in writing as to initiation of each registration and as
to the completion thereof. At its expense, the Company will use its best efforts
to:
(a) Keep such registration effective for the period ending (i) 180
days after the Maturity Date of the Debentures, (ii) when the Holder has
completed the distribution of the Registrable Securities described in the
registration statement relating thereto, or (iii) the date on which the
Registrable Securities are saleable pursuant to Rule 144(k) promulgated
under the Securities Act, whichever first occurs.
(b) Furnish such number of prospectuses and other documents incident
thereto as the Holder from time to time may reasonably request.
8. Indemnification.
(a) Company Indemnity. The Company will indemnify the Holder, each of
its officers, directors and partners, and each person controlling the
Holder within the meaning of Section 15 of the Securities Act and the rules
and regulations thereunder, and each underwriter, if any, and each person
who controls, within the meaning of Section 15 of the Securities Act and
the rules and regulations thereunder, any underwriter, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out
of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular or other
document (including any related registration statement, notification or the
like) incident to any registration effected
218
pursuant to this Registration Rights Agreement, or based on any omission
(or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any violation by
the Company of the Securities Act or any state securities law or in either
case, any rule or regulation thereunder applicable to the Company and
relating to action or inaction required of the Company in connection with
any such registration, and will reimburse the Holder, each of its officers,
directors and partners, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to
the extent that any such claim, loss, damage, liability or expense arises
out of or is based on any untrue statement or omission (or alleged untrue
statement or omission) based upon written information furnished to the
Company by the Holder and stated to be specifically for use therein. The
indemnity agreement contained in this Section 8(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company
(which consent will not be unreasonably withheld).
(b) Holder Indemnity. The Holder will, if Registrable Securities held
by it are included in a registration statement effected pursuant to this
Registration Rights Agreement, indemnify the Company, each of its
directors, officers, partners, each person who controls the Company within
the meaning of Section 15 of the Securities Act and the rules and
regulations thereunder, each other Holder (if any), and each of their
officers, directors and partners, and each person controlling such other
Holder, against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any registration
statement, prospectus, offering circular or other document incident to any
registration of Registrable Securities pursuant to this Registration Rights
Agreement, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company and such
other Holders and their directors, officers and partners or control persons
for any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering
circular or other document in reliance upon and in conformity
219
with written information furnished to the Company by the Holder and stated
to be specifically for use therein; provided, however, that the obligations
of the Holder shall not apply to amounts paid in settlement of any such
claims, losses, damages or liabilities if such settlement is effected
without the consent of the Holder (which consent shall not be unreasonably
withheld). Notwithstanding anything to the contrary in this Section 8, the
Holder's liability under this paragraph 8(b) with respect to any particular
registration shall be limited to an amount equal to the proceeds received
by the Holder from the Registrable Securities sold by the Holder in such
registration.
(c) Procedure. Each party entitled to indemnification under this
Section 8 (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the
defense of any such claim in any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of
such claim or any litigation resulting therefrom, shall be approved by the
Indemnified Parties (whose approval shall not be unreasonably withheld),
and the Indemnified Party may participate in such defense at its own
expense, and provided, further, that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations under this Section except to the extent that the
Indemnifying Party is actually prejudiced by such failure to provide
notice. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of the Indemnified Parties,
consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to all Indemnified Parties of a release from all liability in
respect of such claim or litigation. Each Indemnified Party shall furnish
such information regarding itself or the claim in question as any
Indemnifying Party may reasonably request in writing.
9. Contribution. If the indemnification provided for in Section 8 herein is
unavailable to the Indemnified Parties in respect of any losses, claims, damages
or liabilities referred to herein, then each such Indemnifying Party, in lieu of
indemnifying the Indemnified Parties, shall contribute to the amount paid or
payable by such Indemnified Parties as a result of such losses, claims, damages
or liabilities (i) as between the Company on the one hand and the Indemnified
Parties on the other, in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Indemnified
Parties on the other hand from the registration of the Registrable Securities,
or (ii) if such
220
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the Indemnified Parties, on the
other hand in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and the
Indemnified Parties, on the other hand shall be deemed to be in the same
proportion as the proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company from the
initial sale of the Debentures by the Company pursuant to the Agreement bear to
the gain realized by the Holder in connection with the sale of Registrable
Securities by the Holder pursuant to the registration. The relative fault of the
Company on the one hand and of the Holder, on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission to state a material fact relates to
information supplied by the Company by the Holder.
In no event shall the obligation of any Indemnifying Party to contribute
under this Section 9 exceed the amount that such Indemnifying Party would have
been obligated to pay by way of indemnification if the indemnification provided
for under Section 8(a) or 8(b) hereof had been available under the
circumstances.
The Company and the Holder agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
(even if the Indemnified Parties were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraphs. The amount
paid or payable by an Indemnified Party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraphs
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
10. Survival. The indemnity and contribution agreements contained in
Sections 8 and 9 shall remain operative and in full force and effect regardless
of (i) any termination of the Agreement, (ii) any
221
investigation made by or on behalf of any Indemnified Party or by or on behalf-
of the Company or (iii) the consummation of the sale or successive resales of
the Registrable Securities.
11. Information By Holder and Any Underwriters. The Holder shall furnish to
the Company, within 20 business days of the Company's request therefor, such
information regarding the Holder or underwriters, as the case may be, and the
distribution proposed by such Holder or underwriters as the Company may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification or compliance referred to in this
Registration Rights Agreement.
Each Holder whose Registrable Securities are included in a Registration
Statement understands that the Securities Act may require delivery of a
prospectus relating thereto in connection with any sale thereof pursuant to such
Registration Statement and each such Holder shall use its reasonable best
efforts to comply with the applicable prospectus delivery requirements of the
Securities Act in connection with any such sale.
Each Holder agrees to use its reasonable best efforts to notify the Company
promptly after the date on which all Registrable Securities owned by such Holder
have been sold by such Holder, if such date is prior to the Maturity Date, so
that the Company may comply with its obligation to terminate the Registration
Statement in accordance with Item 512 of Regulation SK or Regulation SB, as the
case may be.
12. Transfer of Assignment of Registration Rights. The rights granted to
the Holder by the Company under this Registration Rights Agreement, to cause the
Company to register Registrable Securities, may be transferred or assigned to a
transferee or assignee of any of not less than $100,000 in principal amount of
Debentures, provided that the Company is given written notice by the Holder at
the time of or within a reasonable time after said transfer or assignment,
stating the name and address of said transferee or assignee and identifying the
securities with respect to which such registration rights are being transferred
or assigned, and provided, further, that the transferee or assignee of such
rights is not deemed by the Board of Directors of the Company, in its reasonable
judgment, to be a competitor of the Company and provided, further, that the
transferee or assignee of such rights agrees to be bound by this Registration
Rights Agreement.
222
13. Miscellaneous.
(a) Entire Agreement; Counterparts. This Registration Rights
Agreement, the Subscription Agreement (including the Schedules and Exhibits
thereto), the Debentures and the other Related Agreements contain the
entire understanding and agreement of the parties with respect to the
subject matter hereof. This Registration Rights Agreement may not be
modified or terminated except by a written agreement signed by both
parties. This Registration Rights Agreement may be executed in any number
of counterparts.
(b) Notices. Any notice or other communication given or permitted
under this Agreement shall be in writing and shall be deemed to have been
duly given if personally delivered or sent by registered or certified mail,
return receipt requested, postage prepaid with a copy in each case sent on
the same day to the party by facsimile, Federal Express or other such
expedited means, (a) if to Purchaser, at its address hereinabove set forth
(if Xxxxxx, Xxxxxx & Co., L.P., or an affiliated entity, then a copy to
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx - 00000, Attention: Xxxxxxx X. Xxxx, Esq., Telecopy No.: (212)
000-0000, Telephone No.: (000) 000-0000), (b) if to the Company, at its
address hereinabove set forth, (c) if, to a Holder other than the
Purchaser, at the address thereof furnished by like notice to the Company,
or (d) to any such addressee at such other address or addresses as shall be
so furnished to the other parties hereto by like notice. Communications
shall be deemed to have been received when personally delivered or, if sent
by mail or facsimile, when actually received by the party to whom it is
addressed. Copies of all notices to the Company shall be sent to Xxxx X.
Xxxxxx, Director of Finance of the Company, and to the attention of the
General counsel of the Company. Copies of all notices to the Holder shall
be sent to its designee or representative.
(c) Gender of Terms. All terms used herein shall be deemed to include
the feminine and the neuter, and the singular and the plural, as the
context requires.
(d) Governing Law; Consent of Jurisdiction. This Registration Rights
Agreement shall be governed by and construed in accordance with the laws of
the Commonwealth of Massachusetts, without regard to the principles of
conflicts of laws thereof. Each of the Company and the Purchaser (i) hereby
irrevocably submits to the exclusive jurisdiction of the United States
District Court for the Southern District of New York for the purposes of
any suit, action or proceeding arising out of
223
or relating to this Registration Rights Agreement and (ii) hereby waives,
and agrees not to assert in any such suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of such court, that
the suit, action or proceeding is brought in an inconvenient forum or that
the venue of the suit, action or proceeding is improper. Each of the
Company and the Purchaser consents to process being served in any such
suit, action or proceeding by mailing a copy thereof to such party at the
address in effect for notices to it under this Registration Rights
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing in this paragraph shall
affect or limit any right to serve process in any other manner permitted by
law.
(e) Title. The titles used in this Registration Rights Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Registration Rights Agreement.
224
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed as of the date first above written.
INVESTOR:
By its:
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
PALOMAR MEDICAL TECHNOLOGIES, INC.
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
